Allowed

Pravinaben Amratbhai Kavaiya v. State of Gujarat

Gujarat HC16 Mar 2022CR.MA/2674/2022

Case brief

AI extract

What is this about?

The Gujarat High Court granted regular bail in a suicide case involving alleged abetment under Sections 306 and 498A IPC. Finding that the alleged instigation failed to create a reasonable certainty to incite suicide and lacked corroboration like call records, the court exercised its discretion to enlarge the petitioner on bail with conditions.

What did the court decide?

Petitioner released on regular bail upon executing a personal bond of Rs. 15,000/- with one surety and complying with conditions regarding passport, residence, and movement.

Pravinaben Amratbhai Kavaiya Vs State of Gujarat — Bail and Remand | Gujarat HC (2022)

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R/CR.MA/2674/2022 ORDER DATED: 16/03/2022

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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R/CRIMINAL MISC.APPLICATION NO. 2674 of 2022

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PRAVINABEN AMRATBHAI KAVAIYA

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Versus STATE OF GUJARAT

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Appearance:

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MR AM PAREKH(562) for the Applicant(s) No. 1 MR NN AJMERI(6193) for the Applicant(s) No. 1 MR PRANAV TRIVEDI, ADDL. PUBLIC PROSECUTOR for the Respondent(s) No. 1

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CORAM: HONOURABLE MS. JUSTICE GITA GOPI Date : 16/03/2022

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ORAL ORDER

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This application has been filed under section 439 of the Code of Criminal Procedure for regular bail in connection with the FIR being C.R.No. 11189004220005 of 2022 registered with “B” Division Police Station, Morbi, for offences punishable under sections 306, 498A, 507 and 114 of Indian Penal Code.

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Mr. A.M. Parekh, learned advocate for the petitioner submitted that it is a very strange and absurd FIR where some assurance of marriage with the deceased was given seven years prior to the FIR by the present petitioner and her husband on assuring that they would get her married with the brother of the present petitioner. Learned advocate for the petitioner submitted that as per the allegation the deceased had denied the same and keeping with grudge the petitioner and her husband were quarreling with them through phone calls and were causing harassment. It is also alleged that occasionally when they used to meet, the petitioner and her husband would rebuke her and because of that the deceased

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Page 1 of 6

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R/CR.MA/2674/2022 ORDER DATED: 16/03/2022

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had committed suicide by pouring kerosene on her. Learned advocate for the petitioner submitted that the very allegation made in the FIR does not suggest any instant or immediate cause for the abetment of commission of suicide and there is no instigation whatsoever from the present petitioner or her husband to give any cause for the deceased to take final ultimate step of committing the suicide. It was, therefore, prayed that the present application may be allowed and the petitioner herein may be released on regular bail.

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Learned APP relying on the report submitted that as per the dying declaration the deceased harboured a suspicion that she was under some trantrik vidya (black magic) initiated by the present petitioner and her husband, and because of constant phone calls and quarrels, she sustained mental harassment and therefore committed suicide. It was therefore urged that no discretion may be exercised in favour of the petitioner.

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Learned advocate for the petitioner submitted that there is nothing on record to suggest any phone calls as CDR is not forming the part of chargesheet and further states that there would not be any occasion on the part of the petitioner to instigate the deceased as they were staying 80 kms away from the deceased house.

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In the case of M. Mohan v. State Represented by the Deputy Superintendent of Police, AIR 2011 SC 1238 : (2011) 3 SCC 626, the Apex Court has made the following observations regarding the ingredients of Section 306 IPC referring to the word 'suicide', which reads thus:

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Page 2 of 6

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R/CR.MA/2674/2022 ORDER DATED: 16/03/2022

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“If the provisions for the offence under Section 306 are considered, it is evident that the basic ingredient regarding the intentional instigation are required to be proved or established. The word ‘suicide’ has not been defined. The word ‘suicide’ would mean the intentional killing of oneself. As per Concise Oxford Dictionary, 9^th Edition, p.686, “A finding of suicide must be on evidence of intention. Every act of self destruction is, in common language described by the word ‘suicide’ provided it is an intentional act of a party knowing the probable consequence of what he is about. Suicide is never to be presumed. Intention is the essential legal ingredient.”

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5.1 In the case of Gangula Mohan Reddy v. State of A.P., 2010 Cr. L.J. 2110(1), the concept of abetment has been made clear with reference to Section 107 of IPC in relation to Section 306 of IPC.

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“It is observed that the act of abetment was mental process of instigating a person or intentionally aiding a person in doing of a thing. Thus, abetment involves mental process of instigating or intentionally aiding a person in doing thing. Without a positive act on the part of the accused to instigate or aid in committing suicide, it cannot be considered that the accused had goaded or urged forward to provoke, incite or encourage the act of commission of suicide.”

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5.2 Even in a recent decision rendered by the Apex Court in the case of Mahendra K.C. v. State of Karnataka and another, (2022) 2 SCC 129 and another wherein it has been held that the essence of abetment lies in instigating a

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Page 3 of 6

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R/CR.MA/2674/2022 ORDER DATED: 16/03/2022

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person to do a thing or the intentional doing of that thing by an act or illegal omission. Instigation is to goad, urge forward, provoke, incite or encourage to do “an act”. To satisfy the requirement of instigation though it is not necessary that actual words must be used to that effect or what constitutes instigation must necessarily and specifically be suggestive of the consequence. Yet a reasonable certainty to incite the consequence must be capable of being spelt out. A word uttered in the fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation.

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Heard learned advocates on both the sides and perused the material on record. Considering the facts alleged that there was some promise the present petitioner and her husband had given marriage proposal to the deceased and they wanted the deceased to marry with the brother of the present petitioner and that incident is stated to be seven year prior to the filing of the FIR and at the relevant point of time the deceased had declined the said proposal and it was on that basis there was constant quarrel and deceased was put to mental stress. The said fact does not get fortified by CDR; since allegation is of harassment through phone calls, but nothing has been shown in any of the witness statement that in any of the family function or any occasion, the petitioner had harassed the deceased which would fall into any act of instigating the deceased to commit suicide; and thus considering the fact that the trial will take its own time to conclude; this Court is of the opinion that the discretion could be exercised in favour of the petitioner to enlarge him on bail.

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Page 4 of 6

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R/CR.MA/2674/2022 ORDER DATED: 16/03/2022

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Hence, the present application is allowed. The petitioner is ordered to be released on regular bail in connection with FIR being C.R.No. 11189004220005 of 2022 registered with “B” Division Police Station, Morbi, on executing a personal bond of Rs.15,000/- (Rupees Fifteen Thousand only) with one surety of the like amount to the satisfaction of the trial Court and subject to the conditions that she shall;

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[a] not take undue advantage of liberty or misuse liberty; [b] not act in a manner injurious to the interest of the prosecution;

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[c] surrender passport, if any, to the lower court within a week;

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[d] not leave India without prior permission of the concerned trial court;

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[e] furnish the present address of residence to the Investigating Officer and also to the Court at the time of execution of the bond and shall not change the residence without prior permission of the concerned trial court;

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The authorities shall adhere to its own Circular relating to COVID-19 and, thereafter, will release the petitioner only if she is not required in connection with any other offence for the time being. If breach of any of the above conditions is committed, the Sessions Judge concerned will be free to issue warrant or take appropriate action in the matter. Bail bond to be executed before the lower Court having jurisdiction to try the case.

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